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The American Prospect - articles by authorenCourting an Advantagehttp://prospect.org/article/courting-advantage
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"> <p>
The temporary lull in judicial confirmation battles has come to an end. Hoping to ramp up its base in time for the midterm elections, the White House recently promised supporters that it will flood the Senate with more right-wing appeals court nominees. Simultaneously, Senate Republicans have pushed for votes on existing ones, some of whom are so divisive that Majority Leader Bill Frist has not acted until now. Meanwhile, conservative activists sit like vultures, hoping that the 86-year-old John Paul Stevens retires and gives President Bush a crack at naming a third justice. </p>
<p>For their part, most Democrats prefer taking up almost any subject to avoid having to talk about judges. Where Republicans see opportunities by scoring points with their base, Democrats see pitfalls, believing that every vote against a nominee invites voter discontent. Americans care about vigorous enforcement of civil-rights laws, as well as worker, health and safety, and environmental protections. But Democrats have not found a way either to articulate their own affirmative vision or to expose Republican talking points about “judicial restraint” and “interpreting, not making the law” for the simplistic, counter-factual demagoguery that it is. </p>
<p>With a third Bush high court nominee potentially in the offing, the time could be now or never to flip the script.</p>
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<p>If President Bush gets the opportunity to nominate another Supreme Court justice, the trend toward weakening, even undoing, constitutional and statutory protections will accelerate. We might also witness judicial accommodation of this administration's unprecedented claims to nearly unfettered executive power. If the nominee were to be young, a substantial new, staunchly conservative bloc could dominate American law and life for more than a generation. Remember: Clarence Thomas is only 57, Alito is 56, and Roberts just turned 51.</p>
<p>Notwithstanding their advantages, Republicans have given Democrats an opening to find their voices. It presented itself (again) during the Alito confirmation process. Although Alito's lengthy record showed him to be one of the most aggressively conservative jurists in the country, Republicans billed him as a moderate, avoided talking about his legal views, and advanced a political strategy of blasting anyone who pursued such legitimate discussion -- senators, academics, the press -- as engaging in “despicable” behavior. Why? Because they know the public won't embrace the throwback legal regime that movement conservatives have long been trying to revive. The question is whether Democratic senators will exploit this continuing opportunity. </p>
<p>With the White House and its Senate allies spoiling for a courts fight and the President's poll numbers dwindling, there's no better time to stand up for good judges, to articulate the dangers posed by jurists “in the mold of Scalia and Thomas,” and to present the compelling vision of the law that progressives possess. But to do that, Democrats must make judgeships and the courts a priority.</p>
<p>That means explaining why independent courts are essential to upholding our rights and protections and why today it is “activist” conservatives who are trying to transform the law. It means focusing laser-like on nominees' legal views and forgoing the almost always-futile quest for “smoking-gun” disqualifiers. It means insisting on consequences when a nominee refuses to divulge what he or she thinks. It means wresting control of the confirmation process from the “Gang of 14,” which came together last year to avert a showdown over the use of the filibuster. To their credit, the Gang theoretically preserved the prerogative of a substantial Senate minority to moderate presidential overreaching. But in practice, the victory has proven hollow, since the Gang's seven Democrats seem unwilling to exercise that prerogative if the objections to a nominee are rooted in the one thing that matters most -- judicial philosophy. </p>
<p>For now, all eyes will turn to the skirmishes taking place in the Senate around a handful of appellate nominees. Because it is in the appeals courts that the law is often shaped, these are important appointments. To be sure, Democrats remain at a numeric disadvantage in challenging them, at least until November and perhaps thereafter. But Republicans' renewed push to play politics with judges nevertheless gives Democrats the opportunity to chart a new course. The 42 votes cast against Alito provided a good toehold. Democrats should now, with coherence, press forward. </p>
<p><i>Nan Aron is president of the Alliance for Justice, an association of public-interest groups in Washington, D.C.</i></p>
</div></div></div>Sun, 21 May 2006 16:04:22 +0000145436 at http://prospect.orgNan AronCourt Sidehttp://prospect.org/article/court-side
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"> <p>The withdrawal of Miguel Estrada's judicial nomination is a setback for the Bush administration in its efforts to cement the far right's hold on the U.S. Court of Appeals for the District of Columbia Circuit. Will this be a temporary setback? That depends in part on whether President Bush -- with the help of Senate Republicans -- is able to push through the nominations of Brett Kavanaugh and Janice Rogers Brown, two other right-wing nominees to the D.C. Circuit who, like Estrada, are extremists unfit for the bench.</p>
<p>Defending the D.C. Circuit from far-right nominees is worth the fight because it is second only to the Supreme Court in prestige and power. It is also a sort of farm team for the high court: Three of the nine sitting Supreme Court justices came from the D.C. Circuit.</p>
<p>Bush nominated Estrada for a reason: Like the Republican officials who once shepherded the career of Clarence Thomas, the White House clearly viewed an appointment to the D.C. Circuit as a stepping stone to the high court for Estrada. (Thomas served a short stint on the D.C. Circuit before George Bush Senior nominated him to the Supreme Court.) Just as Thomas' backers wrongly assumed a decade ago that his race would make it impossible for liberal groups to oppose his nomination, White House officials patronizingly bet that Hispanic groups would fall in line behind Estrada.</p>
<p>But they were wrong. Groups such as the Mexican American Legal Defense and Educational Fund expressed serious concern about Estrada's nomination from the beginning -- and ultimately came out in strong opposition.</p>
<p>Meanwhile, the Senate Judiciary Committee's nine Democrats hardened in their opposition to the nomination following Estrada's hearing before the group in September 2002. One of Estrada's supervisors at the Justice Department, Paul Bender, had said that the nominee was "too much of an ideologue to be an appellate judge." Subsequently, Sen. Patrick Leahy (D-Vt.), then chairman of the committee, asked the administration to make available legal memos that Estrada wrote while at the Justice Department. The administration refused, claiming incorrectly that the request was without precedent -- in fact, the Reagan administration readily turned over similar documents to the Senate during the battle over Robert Bork's nomination in 1987.</p>
<p>Estrada's hearing was an exercise in evasion and stonewalling. The nominee refused senators' requests that he encourage the administration to make his memos available. When asked to name Supreme Court decisions with which he disagreed, he took a page from the Clarence Thomas playbook and replied that he could not form an opinion on a case without reading briefs and hearing oral arguments. But senators have learned from the Thomas experience -- a year after he demurred on <i>Roe v. Wade</i> at his confirmation hearing, he voted to overturn it -- and so they greeted Estrada's professed agnosticism with appropriate doubt. Ultimately, 45 senators recognized that they had to use every available tool to reject a nominee who expected them to take his fitness for the bench on faith.</p>
<p>The White House's handling of Estrada's nomination was a display of raw arrogance. Administration officials expected senators to simply accede to their court-packing strategy. Fortunately, the senators didn't buckle. But rather than being chastened by this experience, Republicans now seem intent on wringing political capital from the episode.</p>
<p>Playing the race card that they have so often denounced in the past, Senate Republicans have attempted to portray the opposition to Estrada as anti-Hispanic. This charade has become comical, with Republicans suggesting that Democrats fought Estrada because of his ethnic background rather than because he refused to cooperate with the Judiciary Committee. I don't believe the American people will fall for it.</p>
<p>Nor will they fall for the ludicrous Republican attempts to portray Democrats as sexist (for their opposition to 5th Circuit nominee Priscilla Owen) or anti-Catholic (for their opposition to 11th Circuit nominee Bill Pryor).</p>
<p>What happened to Estrada suggests that the administration would be wise to steer a new course in judicial nominations -- one of consensus, consultation and moderation. But there are no signs that the administration has learned a lesson. Owen and Pryor remain in contention for circuit court posts, the nominations of Kavanaugh and Brown are pending, and the president has all but guaranteed that there will be more Estradas -- that is, more pawns in a broad strategy to remake the courts in a conservative mold.</p>
<p><i>Nan Aron is president of the <a href="http://www.afj.org" target="outlink">Alliance for Justice</a>.</i></p>
</div></div></div>Tue, 09 Sep 2003 19:44:44 +0000140392 at http://prospect.orgNan Aron